Today, 121 investment treaties in the public domain include a dispute resolution clause that calls for arbitration under the SCC Rules or for the SCC to act as appointing authority in ad hoc arbitrations. 120 of these investment treaties are bilateral agreements, signed by state governments. In addition, the Energy Charter Treaty (ECT) also includes SCC arbitration as one of three options for investors to bring their claims, together with ICSID arbitration and the UNCITRAL Arbitration Rules.
Of these 121 investment treaties, 60 include a dispute resolution clause for arbitration under the SCC Rules, 61 list the SCC as the appointing authority and 13 list Stockholm as the seat of arbitration.
In the treaties that include a dispute resolution clause calling for arbitration under the SCC Rules, SCC arbitration is listed as a non-exclusive option in 97% of these treaties. In the majority of these treaties, 58, arbitration may commence after an ADR period of 6 months; the ADR period lasts for 3 months in one treaty.
When the SCC is listed as the appointing authority, all but one of the 61 treaties states that either the Chairman or President of the SCC shall make the requested appointment. In the remaining 1 treaty, the SCC shall make the appointment. A variety of different circumstances may trigger the SCC’s roles as appointing authority in these treaties. Most frequently, in 66% of these treaties, the SCC is asked to act as the appointing authority when time limits are not observed. Other preconditions to the SCC becoming appointing authority include that the Washington Convention is not applicable (12%) and that the arbitration takes place under the UNCITRAL Arbitration Rules (5%).
Of the treaties that include Stockholm as the seat of the arbitration, Stockholm is most frequently designated to be the seat when the parties have not otherwise agreed (38%).
The first BIT to refer to the SCC as a venue to assist in resolving investment disputes was signed in 1983 between Germany and China, and the numbers of treaties referring to the SCC have steadily increasing over the past twenty years.
Today, 64 countries are signatories to BITs that refer to the SCC in their dispute resolution clauses. These countries come from across Europe, Africa, Asia and South America. Belgium and Luxembourg has the most BITs that refer to the SCC with 29 BITs, followed by the Russian Federation (21), China (16) and Italy (13).